Letsos & Vakros - [2009] FMCAfam 897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LETSOS & VAKROS

[2009] FMCAfam 897

FAMILY LAW – Parentage testing – credibility of applicant.

Evidence Act 1995, s.140
Family Law Act 1975, ss.60CA, 60CC, 64B, 69VA, 69W & 69Y

Adam v the Queen (2001) 207 CLR 96
Cousins & Harper & Ors [2007] FAMCA 1135
Duroux & Martin (1993) FLC92-432
F & R (1992) FLC 92-300
F & Z [2005] FMCAfam 394
G v H (1993) FLC 92-380
G & H (1994) FLC 92-504
Harris v. Tippett (1811) 2 Camp. 637
Lee v The Queen (1998) 195 CLR 594
McK & KVO (2001) FLC93-089
Palmer v The Queen [1998] CLR 1
Preston-Jones v Preston-Jones (1951) AC 391
Re H & A (Paternity:Blood Test) (2002) 1 FLR 1145
TNL & CYT (2005) FamCA 77
Tryon & Clutterbuck [2007] FamCA 580
Wren v Emmett Contractors Pty Ltd [1969] 43 ALJR 213

Applicant:

MR LETSOS

Respondent:

MS VAKROS

File Number:

SYC2710 of 2007

Judgment of:

Kemp FM

Hearing dates:

7 December 2007, 14 February 2008 & 10 November 2008

Date of Last Submission:

27 July 2009

Delivered at:

Sydney

Delivered on:

25 August 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Battley

ORDERS

Pursuant to section 69W of the Family Law Act 1975, the parties sign all such documents and do all acts and things necessary to undergo an approved parentage DNA testing procedure (“the Procedure”) to be carried out by a certified testing agency as agreed between the parties and failing agreement as nominated by the Applicant, (“the Agency”), in relation to the following:
(a)Mr Letsos, born in 1964;
(b)Ms Vakros; born in 1971; and
(c)[X], born in 2007.
The parties contact the Agency within 7 days to complete all necessary documentation in order for the Procedure to take place.
Pursuant to s.69X of the Family Law Act 1975, the parties and the said child attend upon a registered medical practitioner or pathologist to enable a bodily sample to be taken from them for the Procedure to be carried out by the Agency.
The parties each initially pay half the costs of the Procedure and ensure that their share of the cost is forwarded to the Agency with any documentation duly completed.
The parties ensure they submit to the Procedure within 28 days from the date of these Orders and the respondent mother ensure that the child also submits to the Procedure as advised by the Agency.
If the applicant is the father of the child, the respondent shall reimburse the applicant within 28 days from the date the results become known to the parties, for the applicant’s share of the costs associated with the Procedure and if the applicant is excluded by testing, as the father of the child, the applicant shall reimburse the respondent for his share of the costs associated with the Procedure within 28 days from the date the results become known to the parties.
Both parties’ costs of the application with respect to parentage testing, be reserved.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Letsos & Vakros

Details

AGLC: Letsos & Vakros [2009] FMCAfam 897
Case: [2009] FMCAfam 897
Decision Date: 25 August 2009

CaseChat Overview and Summary

In the case of Letsos v Vakros, the Family Court was tasked with resolving a dispute regarding parentage. The applicant, Letsos, sought to determine whether he was the biological father of the child, [X], born to the respondent, Vakros, in 2007. The case required the court to address whether the applicant was the biological father of the child and to mandate DNA testing to ascertain the biological parentage.

The legal issues before the court were whether the applicant was the biological father of the child and if so, whether DNA testing should be mandated to confirm the biological parentage. The court needed to consider the relevant sections of the Family Law Act 1975, specifically sections 69W and 69X, to determine the appropriate course of action.

The court found that the applicant had established a prima facie case for parentage testing and, accordingly, ordered that the parties undergo DNA testing to determine the biological parentage. The court mandated specific procedures for the testing, including the selection of a certified testing agency, the division of costs, and the timeline for completing the testing. The court also reserved the costs of the application and set a date for the matter to be mentioned again.

The court's orders required the parties to undergo DNA testing to determine the biological parentage of the child. The orders specified the procedures for the testing, including the selection of a certified testing agency, the division of costs, and the timeline for completing the testing. The court also reserved the costs of the application and set a date for the matter to be mentioned again.

Orders

Orders of the court

Pursuant to section 69W of the Family Law Act 1975, the parties sign all such documents and do all acts and things necessary to undergo an approved parentage DNA testing procedure (“the Procedure”) to be carried out by a certified testing agency as agreed between the parties and failing agreement as nominated by the Applicant, (“the Agency”), in relation to the following:

(a) Mr Letsos, born in 1964;

(b) Ms Vakros; born in 1971; and

The parties contact the Agency within 7 days to complete all necessary documentation in order for the Procedure to take place.

Pursuant to s.69X of the Family Law Act 1975, the parties and the said child attend upon a registered medical practitioner or pathologist to enable a bodily sample to be taken from them for the Procedure to be carried out by the Agency.

The parties each initially pay half the costs of the Procedure and ensure that their share of the cost is forwarded to the Agency with any documentation duly completed.

The parties ensure they submit to the Procedure within 28 days from the date of these Orders and the respondent mother ensure that the child also submits to the Procedure as advised by the Agency.

If the applicant is the father of the child, the respondent shall reimburse the applicant within 28 days from the date the results become known to the parties, for the applicant’s share of the costs associated with the Procedure and if the applicant is excluded by testing, as the father of the child, the applicant shall reimburse the respondent for his share of the costs associated with the Procedure within 28 days from the date the results become known to the parties.

Both parties’ costs of the application with respect to parentage testing, be reserved.

The matter be adjourned to 14 December 2009 at 9.30am for mention.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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